Mid-Continent Wood Products v. Harris

936 F.2d 297 (7th Cir. 1991)

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Nature of the Case

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Facts

Harris Plywood, Inc. (D1) purchased lumber from Mid-Continent Wood Products, Inc. (D). D failed to make any payments, and the parties agreed that the amount due would bear interest at the rate of fourteen percent per annum and that payments would commence within a few weeks. D1 failed to make any payments. P sued for breach of contract. The district court eventually granted P’s motion for a default judgment for $28,544.75. P accepted a promissory note for the judgment amount from Lawrence Harris (D). D failed to pay the amount due, and P filed this action to collect on the note. D have presented a difficult time in service. On the fifth attempt, the complaint and summons was attached to the door of the residence and followed this up by mailing another copy addressed to Harris at the same address. Notice was sent to his home and prior attorney in the previous suit. D's attorney contacted P and proposed a settlement in which Harris would pay the entire amount due on the note in monthly installments. P rejected that offer. D ignored the rejection and confirmed in writing D’s intent of forwarding a check and a promissory note in partial satisfaction. There was a check for $1,000.00 signed on behalf of Superb Realty and three notes for $1,000.00 each signed by agents acting on behalf of Superb Realty. P obtained a default judgment. Six years later, P located certain assets of Harris' in Massachusetts and attempted to execute upon the 1983 judgment. D then filed a motion for relief in the district court pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. D claimed that he had not been properly served under Rule 4. He claimed that P used the wrong address. The district court was not impressed. It held that service upon D did not strictly comply with Rule 4 but that was unnecessary as D had actual knowledge of the suit based on his attorney’s negotiations, P’s diligent efforts to serve him and D’s evasive conduct.